Response

The Dialogic Theory of Judicial Review:

A New Social Science Research Agenda
Jenna Bednar*

Introduction
For an institution designed to resolve disagreement, the United
States Supreme Court is remarkably good at stirring the pot. Some
look to the Court as the rampart that makes democracy’s airy con-
struction possible; it is the essential resistance to majoritarian policy
turned oppressive, the bulwark of liberty for minorities. Others point
out the consequences of the Court’s countermajoritarian tendency; it
will either reject progress like a dowdy schoolmarm, or the opposite,
when it legislates from the bench, pushing its unpopular policies on a
befuddled and increasingly resentful public.
We have grown so used to this debate about judicial review that
we fail to ask the obvious question: what if both sides are wrong? In
his remarkable, original book, The Will of the People,1 Barry Friedman
turns the debate inside out. For either side of the conventional debate
to be right, the Court would need to defy the popular majority.2 But
as Friedman shows through a careful examination of the Supreme
Court’s full history, the Court hews closely to public will, rarely stray-

* Associate Professor, University of Michigan. This Essay was prepared for a symposium
on judicial review at The George Washington University Law School in October 2009.
1 BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED
THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009).
2 Id. at 369–70.

September 2010 Vol. 78 No. 6

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2010] Social Science of the Dialogic Theory of Judicial Review 1179

ing from the public’s side and never doing so for long.3 The Court
bounds along, pulling and resisting, but generally it accepts the peo-
ple’s alpha status.4 Golly! The Court is the people’s puppy, and the
people hold it firmly by the leash.
Histories, when recounted by gifted writers (as this one is), can
leave us breathless, but not necessarily sated. Certainly, to know, in
such a familiar way, such a complex story and to be able to guide the
reader with such care and patience is a rare talent. Friedman walks
his reader through the social and political contexts of Supreme Court
decisions as if along a windowed corridor, occasionally throwing back
the curtains to reveal a stunning scene, exposing a landscape both fa-
miliar and fantastic. These stories make for a good read but do not
amount to a satisfying theory. I am a social scientist, meaning I am by
pedigree prone to be skeptical. What is behind the curtains not
opened? To convince me, you need an explanation for why these se-
lected vignettes make sense when linked together that tells us some-
thing about the way human nature interacts with the incentives
created by our government’s structure to produce the history we ob-
serve. That is, you need a good theory. And so, although the book
was quite satisfyingly complete after chapter 10 for virtually all of his
readers, by adding the final chapter, Friedman has turned the book
into a major contribution to social science.
Friedman’s contribution is what he dubs the “dialogic system” of
determining constitutional meaning.5 According to his thesis, the
Court and the public not only speak to one another, they listen to each
other, with the Court deferring to the public when they disagree.6

3 See id. at 370–72.

4 See id.
5 Id. at 382.
6 Id. at 381–84. Others have noted the synchronicity between public opinion and the

Supreme Court. See, e.g., LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITU-
TIONALISM AND JUDICIAL REVIEW (2004); THOMAS R. MARSHALL, PUBLIC OPINION AND THE

SUPREME COURT (1989); David G. Barnum, The Supreme Court and Public Opinion: Judicial
Decision Making in the Post-New Deal Period, 47 J. POL. 652 (1985); Robert A. Dahl, Decision-
Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279 (1957);
Richard Funston, The Supreme Court and Critical Elections, 69 AM. POL. SCI. REV. 795 (1975);
Valerie J. Hoekstra, The Supreme Court and Local Public Opinion, 94 AM. POL. SCI. REV. 89
(2000); William Mishler & Reginald S. Sheehan, The Supreme Court as a Countermajoritarian
Institution? The Impact of Public Opinion on Supreme Court Decisions, 87 AM. POL. SCI. REV.
87 (1993); Walter F. Murphy & Joseph Tanenhaus, Public Opinion and the United States Supreme
Court: Mapping of Some Prerequisites for Court Legitimation of Regime Changes, 2 LAW &
SOC’Y REV. 357 (1968). For Friedman’s own early analysis, see Barry Friedman, Dialogue and
Judicial Review, 91 MICH. L. REV. 577 (1993).
Relatedly, other works trace the public support for the Supreme Court. See, e.g., Gregory
1180 The George Washington Law Review [Vol. 78:1178

Public ambivalence grants the Court some latitude, but there are
boundaries that it may not cross, where the Constitution’s meaning is
pushed beyond the public understanding.7 In these circumstances, the
Court is rebuked and recants submissively.8 Friedman’s Court is one
that might defend minorities unless majority consensus firmly wants
marginalization or discrimination, and rather than shaping legislation
to match its preferences, Friedman’s Court might resist weakly sup-
ported legislation or advance policy that already has a significant base
of support in place.9 But Friedman makes clear that the Court is not
the paladin of liberty or usurper of democracy contrarily depicted in
conventional theories of judicial review.10
For us to believe that the people have the Court by a leash, a
dialogic theory of judicial review must address three critical details:
(1) how the public leashes the Court; (2) how the Court knows the
length of its leash (which is necessary for the incentive to have force);
and (3) how this behavior and knowledge shape the constitution
(small “c”), i.e., the document’s meaning.
None of these three parts makes for an easy argument. This Es-
say examines each of these components, describing what challenges
each poses for social science theory.

I. The Emergence of Public Control of the Court

The metaphorical leash necessary for Friedman’s thesis to hold is
the disciplinary relationship between the public and the Court. In the
dialogic theory of judicial review, the Court inhabits a world where its
actions shape the law, but the Court is also concerned with a supple-
mental effect: its actions have consequences for the welfare of the
Court’s members.11 That is, the Friedman Court is a rational and stra-

A. Caldeira & James L. Gibson, The Etiology of Public Support for the Supreme Court, 36 AM. J.
POL. SCI. 635 (1992); Gregory A. Caldeira, Neither the Purse nor the Sword: Dynamics of Public
Confidence in the Supreme Court, 80 AM. POL. SCI. REV. 1209 (1986); James L. Gibson et al.,
Measuring Attitudes Toward the United States Supreme Court, 47 AM. J. POL. SCI. 354 (2003);
Jeffery J. Mondak & Shannon Ishiyama Smithey, The Dynamics of Public Support for the Su-
preme Court, 59 J. POL. 1114 (1997); Walter F. Murphy & Joseph Tanenhaus, Patterns of Public
Support for the Supreme Court: A Panel Study, 43 J. POL. 24 (1981). None of these works,
however, provides a theory based on incentives to account for these observations.
7 See FRIEDMAN, supra note 1, at 375–78.
8 See id. at 382–83.
9 See id. at 382 (stating that ideally the Court should ignore “popular opinion at the mo-

ment” and instead follow “permanent popular will,” but noting that this distinction is difficult for
Justices to make).
10 See id. at 370.
11 See id. at 371.
2010] Social Science of the Dialogic Theory of Judicial Review 1181

tegic actor;12 its members weigh the costs and benefits of action and
consider the likelihood that their judgment will induce punishment—
in this case, by a watchful public.13 The Court is constrained by its
concern over this consequence; it will resist the short-term satisfaction
of expressing its true legal or policy preferences to avoid being
disciplined.14
Note that this theory complements theories that explain the align-
ment between the Court and the public in terms of the appointments
process, where any deviants are weeded out during the Executive’s
vetting and the Senate’s confirmation hearings, so that only Justices
sympathetic to public opinion are appointed.15 The appointments pro-
cess, however, is not sufficient to explain the general agreeableness of
the Court when public sentiment changes much more quickly than the
decades-long tenure of Court personnel.16
If this induced restraint of public punishment is important to the
Court’s behavior, then the public must understand its role, agree to
pick up the mantle, and punish the straying Court.17 The public must
also make the consequences clear to the Court.18 That is, all agents
subject to the mechanism, whether the actor Court or punisher public,
must understand that this is the game they are playing. In this model,
the public bears a great responsibility. It has an obligation to keep the
Court in line.19 How does the public develop this sense of responsibil-
ity? Does it have it?

12 See LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE 10 (1998).
13 See FRIEDMAN, supra note 1, at 374–76.
14 See id. at 371. In fact, the leash metaphor perfectly illustrates the firmament of compli-
ance theory, the subject of much of the author’s prior scholarship. See, e.g., Jenna Bednar, Is
Full Compliance Possible? Conditions for Shirking with Imperfect Monitoring and Continuous
Action Spaces, 18 J. THEORETICAL POL. 347 (2006).
15 See, e.g., Dahl, supra note 6, at 284–85.
16 See David W. Rohde & Kenneth A. Shepsle, Advising and Consenting in the 60-Vote
Senate: Strategic Appointments to the Supreme Court, 69 J. POL. 664, 668, 675 (2007) (showing
that an individual appointment has little effect on Court decisions, further weakening a connec-
tion between appointments and Court behavior); Jeffrey A. Segal et al., Buyer Beware? Presi-
dential Success Through Supreme Court Appointments, 53 POL. RES. Q. 557, 567–69 (2000)
(displaying the empirical weakness of Dahl’s hypothesis; while appointees may start their tenure
on the bench true to the preferences of the appointing President, over time they may deviate
significantly).
17 Cf. FRIEDMAN, supra note 1, at 376.
18 See id.
19 Cf. id. (noting that the development and enforcement of constitutional meaning result
from the relationship between the courts and the public).
1182 The George Washington Law Review [Vol. 78:1178

The abstract analyses of game theorists probe how institutions

shape behavior given particular assumptions.20 One assumption is
that all of the agents in the model will participate.21 In the dialogic
theory, this means that the public understands and accepts its role:
when it sees the Court step out of line, it has a choice to punish the
Court.22 The public may also choose to let the slight go unpunished,
of course, but the choice is active; there is intentionality in the public’s
decision.23 The model presumes that the actor understands its role
and makes a choice.24
How does the public, the citizens of this new nation, grow to em-
brace this role? One might think that the difficulty would be in get-
ting the public to accept that it has the right to challenge the Court.
Surveys indicate, however, that while the public may know few details
about what is written in the Constitution, they seem to have no
trouble formulating an opinion about whether or not the Court has
acted appropriately in many cases.25 There is no reason to suspect
that the early American people, fresh from a revolution, would hesi-
tate to appraise the Court’s performance.26
Instead, the contrary may be true. It is possible that in the early
years of the Republic, the public needed to be convinced that it should
pay attention to the Court and the Court’s judgments mattered
broadly, beyond resolving the immediate dispute, and were therefore
worthy of attention and punishment.27 The Court is only worthy of

20 See generally DREW FUNDENBERG & JEAN TIROLE, GAME THEORY (1991) (introducing

the principles of noncooperative game theory); SHAUN P. HARGREAVES HEAP & YANIS
VAROUFAKIS, GAME THEORY: A CRITICAL INTRODUCTION (1995) (discussing the basic assump-
tions of game theory); GRAHAM ROMP, GAME THEORY: INTRODUCTION AND APPLICATIONS
(1997) (introducing game theory as an explanation for how interdependent individuals make
rational decisions).
21 Cf. FUNDENBERG & TIROLE, supra note 20, at 541–42 (explaining that game theory

assumes that all people involved are rational actors with common knowledge); HARGREAVES
HEAP & VAROUFAKIS, supra note 20, at 23–25 (same).
22 See FRIEDMAN, supra note 1, at 376, 379.
23 See id.
24 See id.; cf. HARGREAVES HEAP & VAROUFAKIS, supra note 20, at 28 (noting that game

theory assumes participants know all possible actions and their consequences and make deci-
sions based on this knowledge).
25 See, e.g., VALERIE J. HOEKSTRA, PUBLIC REACTION TO SUPREME COURT DECISIONS

150–51 (2003); Hoekstra, supra note 6, at 97–98. Both show that the public, when informed, is
able to formulate an opinion about Court decisions.
26 See FRIEDMAN, supra note 1, at 31.
27 Cf. Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in 4 THE COL-
LECTED WORKS OF ABRAHAM LINCOLN 262, 268 (Roy P. Basler ed., 1953) (questioning the

wisdom of relying on Supreme Court interpretations of constitutional questions and supporting

the view that the Court’s holdings bound only the parties before it, not the entire nation).
2010] Social Science of the Dialogic Theory of Judicial Review 1183

punishment if its decisions are meaningful; for the public to accept

and empower the Court, it must grow to believe that the Court is use-
ful.28 If the Court is out of step with public desires, then the public
will not accord it the legitimacy necessary for its decisions to have
weight.29
If the Court’s power depends on its ability to convince the public
to pay attention to it, and that attention depends on the public finding
the Court useful, consider what tools the Court has at hand to catch
the public’s eye and prove its worth. The key to public acceptance of
the Court’s legitimacy in patrolling its central government, and even-
tually the people, is seeing that government, even when true to the
democratic process, can go bad and that the Court can patrol it.30 It is
much easier to approve of a decision finding fault with another state’s
legislation than one’s own (even if a citizen does not like her own
government very much). During its early history, the Court con-
cerned itself with the missteps of the state legislatures;31 when it
turned its attention to the Congress, the Court often focused on feder-
alism.32 In a federal system, the majority of the national public can
witness the Court striking legislation without feeling personally
burned. Perhaps federalism can be credited as a catalyst establishing
the Court’s legitimacy, attracting public attention, seeding public con-

28 Contrast the usefulness of the Court to the public against Keith Whittington’s 2005 ex-

plication of the Court as a tool of congressional minorities seeking to move beyond the policy
status quo. See Keith E. Whittington, “Interpose Your Friendly Hand”: Political Supports for the
Exercise of Judicial Review by the United States Supreme Court, 99 AM. POL. SCI. REV. 583, 594
(2005).
29 See FRIEDMAN, supra note 1, at 371.
30 A fundamental project of complex systems research is to understand the conditions that
cause systems to develop characteristics that none of its component parts possesses. See gener-
ally JENNA BEDNAR, THE ROBUST FEDERATION: PRINCIPLES OF DESIGN (2009) (discussing the
optimality of a federal constitutional design made up of complementary but imperfect institu-
tional components); Adrian Vermeule, Foreword: System Effects and the Constitution, 123 HARV.
L. REV. 4 (2009) (making a similar point about the benefit to the democratic process of having
nondemocratic components).
31 See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436–37 (1819) (invalidating a

state tax on all banks, including federally created ones, as contrary to the principles of federal-
ism); FRIEDMAN, supra note 1, at 12–13.
32 See generally The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) (limiting applica-

tion of the Privileges or Immunities Clause of the Fourteenth Amendment to national citizen-
ship); Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856) (limiting the power to confer
national citizenship to Congress); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (invalidating
a state act exercising control over Cherokee Indians because the authority to interact with Na-
tive American tribes rests solely with the federal government); McCulloch, 17 U.S. (4 Wheat.)
316 (holding that a state tax on banks unconstitutionally impinged on Congress’s powers under
the Necessary and Proper Clause).
1184 The George Washington Law Review [Vol. 78:1178

fidence in it, and fostering public acceptance of judicial review.33 This

hypothesis, which Friedman implicitly suggests, deserves further
investigation.

II. Establishing Boundaries on the Court’s Independence

The second requirement of a complete theory is to account for
the leash length, or (less metaphorically) to describe how the Court
might know just how far it can push its members’ own preferences
without punishment. As established, Friedman’s model is essentially
one of threats and punishment, compliance coerced through negative
reinforcement.34 For the Court to be restrained, there must be some
boundary that, when crossed, triggers a punishing response. A basic
requirement for this model is knowledge of the boundary’s location:
that is, the length of the leash, indicating the breadth of tolerance
before the Court is tugged back in line.35 Friedman asks himself this
difficult question: just how long is the Court’s leash?36 Clearly it is a
tough question to answer because Friedman does not do it in the
book, and the Court itself is forever getting it wrong—misestimating
public reaction or displaying a propensity for really bad timing—as
with the Lochner-era decisions,37 Engel v. Vitale38 (banning school
prayer), Miranda v. Arizona39 (coinciding with a surge in crime), most
recently Citizens United v. FEC,40 and, of course, most notoriously
Dred Scott v. Sandford.41
If the length of the leash were predictable, it would be based
upon the fracturing of the public. A controversial decision is not
when the Court bucks public opinion. When it does, the controversy
is not over the decision, but instead over the Court’s role in the demo-

33 If federalism were the instrument fostering the legitimacy of judicial review, then we

may see broader implications of Friedman’s history—beyond the United States—as it can be-
come a lesson for emerging democracies and the establishment of the rule of law, requiring an
active and independent court.
34 See supra text accompanying notes 6–8.
35 See FRIEDMAN, supra note 1, at 373–74.
36 See id. at 373. Friedman actually writes “bungee cord,” id., but I prefer not to think of

Justice Kennedy hanging upside down under a bridge.

37 See, e.g., Adkins v. Children’s Hosp., 261 U.S. 525, 561–62 (1923) (striking down legisla-

tion that provided minimum wages for women); Bailey v. Drexel Furniture Co. (Child Labor Tax
Case), 259 U.S. 20, 43–44 (1922) (invalidating a federal tax imposed on entities that employ
children); Lochner v. New York, 198 U.S. 45, 65 (1905) (striking down a law that limited the
hours bakers could work).
38 Engel v. Vitale, 370 U.S. 421 (1962).
39 Miranda v. Arizona, 384 U.S. 436 (1966).
40 Citizens United v. FEC, 130 S. Ct. 876 (2010).
41 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856).
2010] Social Science of the Dialogic Theory of Judicial Review 1185

cratic process.42 A controversial decision is one that incites disagree-

ment within the public about the appropriateness of the Court’s
ruling.43 Such decisions can come as the logical extension of a doctri-
nal trend developed while the public was not watching. For example,
the Roberts Court has consistently ruled in favor of business inter-
ests,44 an inclination noted by close Court-watchers,45 but missed by
the mainstream public.46 The majority decision in Citizens United47 is
unsurprising given this expressed preference. In complex areas of the
law, like business regulation, the public may be more ambivalent.
Public equivocation grants the Court a longer leash.48 When the ma-
jority of the Court has probusiness preferences, it meets little resis-
tance as it builds a positive environment for business, unnoticed until
it intersects with an issue that affects the public directly: campaign
finance.49 The public will get involved in issues that affect it directly,
such as abortion and eminent domain.50 With these issues, the public
has an impression of what is right and wrong and judges the Court
according to these impressions.
Citizens United underscores the importance of calculating the
leash length for both the public, who would like to avoid such unpopu-
lar judgments, and the Court, which prefers not to disappoint its pub-
lic. Reining in the Court requires coordinated action, and that
coordination can be tricky to devise with a diverse public.51 Some-
times the people are united, sometimes sharply divided (40/20/40),
sometimes closely divided (50/50), and often ambivalent (20/60/20). It

42 See FRIEDMAN, supra note 1, at 5–7.

43 See id. at 8–9.
44 E.g., Adam H. Charnes & James J. Hefferan, Jr., Mostly Pro-Corporation, NAT’L L.J.,

Aug. 6, 2008, at 9; see, e.g., Jenéa M. Reed, Note, In the Shadows of Lohr: The Disconnect Within
the Supreme Court’s Preemption Jurisprudence in Medical Device Liability Cases, 64 U. MIAMI L.
REV. 305, 329–30 (2009).
45 See, e.g., Jeffrey Rosen, Supreme Court Inc., N.Y. TIMES MAG., Mar. 16, 2008, at 38;

David G. Savage, High Court Is Good for Business, L.A. TIMES, June 21, 2007, at A1.
46 But see Robert Barnes & Carrie Johnson, Pro-Business Decision Hews to Pattern of

Roberts Court, WASH. POST, June 22, 2007, at D1; Rosen, supra note 45.
47 Citizens United v. FEC, 130 S. Ct. 876, 917 (2010) (holding that limitations on corporate

funding of independent political broadcasts in candidate elections violate the First Amendment
rights of corporations).
48 See FRIEDMAN, supra note 1, at 377–78.
49 See id.
50 See id. at 378.
51 See generally ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTI-
TUTIONS OF COLLECTIVE ACTION (1990) (analyzing models of collective action); Douglas D.

Heckathorn, Collective Action and Group Heterogeneity: Voluntary Provision Versus Selective
Incentives, 58 AM. SOC. REV. 329 (1993) (discussing the role of heterogeneity in collective
action).
1186 The George Washington Law Review [Vol. 78:1178

is unlikely that the Court listens to the people in each of these circum-
stances in the same manner. Intuitively, it might seem that the leash is
longest when the public is ambivalent, but under what conditions is
the leash shortest? It appears that the threshold for public reprimand
is set by public consensus, but can a well-organized, vocal minority
steer the Court and shape constitutional meaning? A complete theory
will evaluate these different conditions and offer predictions about the
Court’s relative freedom from both public majorities and well-organ-
ized minorities.
Friedman describes how the Court learned the length of its leash
the hard way during the Warren and Burger Courts, when the Court
was deterred in several instances by the force of public opinion.52
Whatever the public did or threatened to do to the Court during the
years of the Warren and Burger Courts, Friedman notes that, at pre-
sent, the people seem willing to forgive the Court even for controver-
sial and significant decisions, as with Bush v. Gore.53 It seems the
people have dropped the leash, but apart from a few larks, the puppy
stays close. Why?
In theory, there are two possibilities. First, perhaps for some rea-
son the people’s punishment capacity has withered. If so, the beliefs
of the credibility of punishment that sustain the equilibrium—the
Court’s submission—will soon decay, causing the Court to behave as
countermajoritarian as the myth recounts. Suppose that this has not
happened. (It is so hard to tell, really!) If it has not, then there is a
second possibility: the people have switched to positive reinforcement.
A model of positive reinforcement would work as follows: as long
as the Court’s decisions sit well with the people, the people will re-
spect the Court and expect their government to be bound by the
Court’s rulings.54 The Court has legitimacy, its only sustenance.55 If,
on the other hand, the Court’s decisions are not in accordance with
public understanding, the public will pay the Court little attention.
Legitimacy, in short, depends upon the Court subscribing to popular

52 See FRIEDMAN, supra note 1, at 254–58, 285–99.

53 Bush v. Gore, 531 U.S. 98 (2000); see FRIEDMAN, supra note 1, at 358. The public ac-
cepted the Court’s decision despite direction from one of the Justices that the public had a right
to object to it. See Bush v. Gore, 531 U.S. at 542 (Stevens, J., dissenting) (“Although we may
never know with complete certainty the identity of the winner of this year’s Presidential election,
the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impar-
tial guardian of the rule of law.”).
54 See FRIEDMAN, supra note 1, at 374–77.
55 See id.
2010] Social Science of the Dialogic Theory of Judicial Review 1187

constitutional interpretation, and so the Court minds the public, even

if the public would never actively correct it.56
If this latter theory of positive reinforcement is more appropriate,
it is worth asking whether this is a general developmental path, one
that might be viewed elsewhere. As with the hypothesis of federalism
contributing to the establishment of judicial review,57 this trend—the
rise and then withering of popular punishment, replaced by reinforce-
ment—may be part of Friedman’s broader contribution to compara-
tive social science.

III. The Implications for How Law’s Meaning Evolves

The final aspect to be constructed in fully building the model of

dialogic judicial review is to describe how the Court’s relationship
with the people shapes the law. This important component is ad-
dressed in two parts: first, the source of limitations on the law, and
second, the Court’s ability to influence public interpretation. Fried-
man’s book sets out to make one big point: the Court sticks close to
the people’s notion of the Constitution’s meaning; when the Court
channels the people, the Constitution acquires meaning.58 On the
more conventional constitutional theories, there are debates among
legal scholars over the limits to the Court’s ability to stretch the words
of the Constitution, whether by deriving an original (and, by implica-
tion, fixed) meaning, by reading the black letter of the text, or by devi-
ating only to enhance the democratic process, and so forth. In
Friedman’s thesis, it is the public that determines the Constitution’s
meaning.59 Is the people’s interpretation limited by the Constitution
itself? The noninterpretivists are chastised for their liberated ap-
proach to the Constitution, implying that there are some bounds on
interpretation that are sacred (at least for law professors). Are the
people similarly bound? That is, are there meanings that the people
would like to ascribe to their Constitution, but the Constitution does
not permit them? If so, who enforces it? If it is the Court, is there a
contradiction in the theory?
The dialogic theory is framed as if the people were in control in
order to highlight its difference from countermajoritarian theories, but
the descriptive word “dialogic” invokes mutual listening, or a partner-

56 Id. at 376.
57 See supra notes 31–33 and accompanying text.
58 See FRIEDMAN, supra note 1, at 14–15.
59 See id.
1188 The George Washington Law Review [Vol. 78:1178

ship.60 If this image is taken seriously, then the Court is not passive; it
pulls the public toward its own vision of the law. What is the role of
the Court in guiding the public to resolve its ambivalence? When it
steps in as umpire between a sharply divided public, does it shape the
constitutional understanding of the losing side? When the public is
ambivalent or divided, in theory the Court’s ruling can be informative,
helping the uninformed public form an opinion, or it selects between
plausible alternatives, weathering criticism until the losing section of
the public acquiesces.61 In either case, it is the Court that leads, and
while in theory it might be corrected, in a world of limited information
or insurmountable coordination difficulties, the Court’s decision will
stand and will shape the law.
Several empirical studies give us a sense of the possibility for and
limitation on the Court’s ability to shape public constitutional under-
standing. Charles Franklin and Liane Kosaki studied public opinion
regarding the constitutional validity of abortion (equated to public ac-
ceptance) before and after the Roe v. Wade62 decision.63 While public
tolerance increased for abortions to protect maternal health, the pub-
lic grew more divided over discretionary abortions than it was prior to
the Court’s ruling.64 Rather than inform and unify public opinion, the
Court’s decision transformed the public’s prior ambivalence into
sharp division.65 Valerie Hoekstra and Jeffrey Segal challenged these
findings with an innovative study focusing on the impact of local deci-
sions.66 They find that when the public is informed about the Court’s
decision, support for the Court increases among those for whom the
decision is relatively less salient.67 In Hoekstra’s subsequent research
on the effect of “ordinary” decisions—those which do not attract the
media’s attention—she finds little support for the Court’s ability to
change public opinion—only that it builds or expends support for the
Court as an institution with a public informed of its judgments.68 Fi-
nally, it is useful to note the distinction between law and policy, and
how little the public thinks about the former even as it cares deeply

60 See id. at 384.

61 See id. at 382–84.
62 Roe v. Wade, 410 U.S. 113 (1973).
63 Charles H. Franklin & Liane C. Kosaki, Republican Schoolmaster: The U.S. Supreme

Court, Public Opinion, and Abortion, 83 AM. POL. SCI. REV. 751 (1989).
64 See id. at 761–62.
65 See id. at 768.
66 Valerie J. Hoekstra & Jeffrey A. Segal, The Sheparding of Local Public Opinion: The
Supreme Court and Lamb’s Chapel, 58 J. POL. 1079 (1996).
67 See id. at 1089, 1092.
68 HOEKSTRA, supra note 25, at 154–55; Hoekstra, supra note 6, at 98.
2010] Social Science of the Dialogic Theory of Judicial Review 1189

about the latter. Phoebe Ellsworth and Lee Ross, in a survey of Cali-
fornian respondents’ attitudes and information about capital punish-
ment, found little correlation between the reasoning of the
respondents and the reasoning of the Supreme Court.69 The study in-
dicated that even if the public agrees with the Court, it is influenced
not by the Court’s reasoning about the law, but instead by the policy
implications of the Court’s decisions.70
Evidence suggests that the public cares little about the shape of
the law as long as it can get its preferred policy.71 The Court scram-
bles to devise reasons—some plausible doctrine—to match constitu-
tional interpretation to public opinion when that opinion is coherent
enough to constrain the Court.72 At a meta level, constitutional con-
sistency is necessary for the legitimacy of the union, and the Court’s
job is to make our Constitution appear consistent.73 At times, the
public asks for something that goes a bit too far, creating an inconsis-
tency within the current trend in constitutional meaning as promul-
gated by the Court.74 It is possible that the Court pulls public
constitutional understanding toward it, and social scientists have not
yet discovered a methodology to reveal unambiguous evidence of the
Court’s power. It is more likely, however, that the Court shapes the
law in areas where its leash is long, and the public never bothers to
hear what the Court is saying.75 It would seem that the dialogue is
about policy, not the Constitution’s meaning.76

Conclusion
This Essay closes with a pitch. The Will of the People is an im-
pressive book, and I know that based on weight alone, it must seem as
if Barry Friedman has pretty much said all that there is to say on the
subject. But really good social science does not close doors without

69 Phoebe C. Ellsworth & Lee Ross, Public Opinion and Capital Punishment: A Close

Examination of the Views of Abolitionists and Retentionists, 29 CRIME & DELINQ. 116, 135
(1983).
70 See id. at 148–49, 165.
71 See, e.g., id.
72 James G. Wilson, The Role of Public Opinion in Constitutional Interpretation, 1993

BYU L. REV. 1037, 1043–47.

73 See, e.g., id. at 1044.
74 Sometimes the deviation lies outside of the public’s immediate policy concerns, such as

in United States v. Morrison, 529 U.S. 598 (2000), where the Court struck down provisions of
legislation designed to punish assaults of women due to its emerging and much-updated federal-
ism doctrine, see id. at 626–27.
75 See FRIEDMAN, supra note 1, at 377–78.
76 See, e.g., HOEKSTRA, supra note 25, at 154–55.
1190 The George Washington Law Review [Vol. 78:1178

opening others. Friedman has not topped off a research agenda; he

has laid the foundations for a new one. By freeing us from the old
conflict-based model of the Court versus the public, he has invited us
to think about how the Court and the public might engage in a sort of
conversation. They may even complement one another, by standing
in where the other is vulnerable, and making one another more effec-
tive. We can use this new perspective to think freshly about the evolu-
tion of judicial review and even about the holy grail—the sinuous path
of law’s development. The right tack is to approach the problem in
pieces, perhaps by following up on some of the questions this Essay
raises.
Of the three components of the dialogic system, Friedman gives
us the greatest insight into the first part: how the public leashes the
Court. My instinct is that federalism facilitated this transformation
(although that perception could just be my glasses). But no matter
what the proximate cause, somehow the people wrested power from
the elites and caused the Court to listen to them. The story of the
evolution of judicial review is not just about a change to the Court’s
authority; it is also about a transformation of the people of the United
States.